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New Al Haq report says governments within their rights to sanction Israel over settlement enterprise

Well-respected Palestinian rights organization Al Haq has published a report about the responsibility of states in relation to Israel’s settlement enterprise. The legal memorandum reviews the Israeli actors, the supportive infrastructure and services, and the associated regime of Israeli laws, policies and practices that compose the “settlement enterprise.”

Al Haq’s memorandum provides a solid legal framework for advocating Palestinian rights, based on the recommendations of the 2004 International Court of Justice advisory opinion on the wall Israel built on Palestinian land, and the internationally accepted 2001 general rules on legal obligations of states when international law is violated. International legal scholars have endorsed the memorandum including Professor John Dugard.

The report also gives legal backing to governments wishing to sanction Israel, stating that ‘it is lawful for any injured party, including any affected State, to take “countermeasures”’.

The document is in particular relevant for the boycott, divestment and sanctions (BDS) movement because it explicitly strengthens the legal basis for activism against Israel’s illegal settlement enterprise. The document presents useful examples of public and corporate complicity. The following summary of the legal paper focuses on information which is particularly relevant for the BDS movement.

Israeli settlement development is a state enterprise

Israeli settlements in the occupied Palestinian territory violate Article 49 (6) of the Fourth Geneva Convention, which states that “the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Israeli governments, the Israeli military, the Jewish Agency and the World Zionist Organization (WZO) played a crucial role in the strategic and operational planning at the early stages. More recently, settlement expansion has been driven by the Ministry of Construction and Housing, the Ministry of Defense - including the Minister’s Assistant on Settlement Affairs - the Israeli military and its “Civil Administration” in the occupied territories, regional and local authorities, and the Settlement Division of the WZO, writes a 2005 official government report. These bodies have mapped Palestinian land allocated for confiscation, identified suitable locations for settlements, supported their construction, and facilitated populating them with Jewish Israeli settlers. Israeli settlements in the occupied territories are therefore the outcome of a state enterprise and not merely the work of the settlers.

Moreover, the Israeli parliament (Knesset) and the courts, in particular the Israeli High Court, have passed over the years legislation and jurisprudence to “justify” the settlement enterprise.

Complicity of institutions and companies

Several public and private actors receive contracts or subsidies for their services to Israel’s settlement enterprise such as postal authorities, academic institutions, the Israeli labor union (Histadrut) and Israel’s national water company Mekorot, which plays a key role in the discriminatory water supply to Israeli settlements and Palestinian communities in the occupied territories.

Other players in the settlement enterprise are Israeli security, trade and export companies, such as Elbit, Agrexco and Mehadrin. Businesses and associations provide essential services for the maintenance and development of the settlements in the area of construction, transport, supply, and services in health, education, culture and sports.

Moreover, private Israeli security companies such as G4S Israel perform tasks in the occupied territories that were traditionally executed by the Israeli security forces. G4S provides equipment and services for the incarceration of Palestinians or the operation of checkpoints and the police headquarters in occupied Jerusalem.

IT companies like Hewlett-Packard subsidiary EDS Israel provide and maintain surveillance and other security-related technology for the Israeli army and settlements.

Israeli banks provide the financial infrastructure and services for all settlement activity including foreign companies.

States must ensure Israel’s respect for international law

During the 45-years settlement enterprise, Israel has realized dramatic changes of the status and demographic composition of the occupied territories. It violated the Fourth Geneva Convention and human rights treaties, as well as customary international law prohibitions on colonialism, racial discrimination and apartheid.

All 194 states who ratified the Fourth Geneva Convention are responsible to ensure Israel’s respect of the provisions of the Convention.

Under the International Convention against Torture, the International Convention on the Suppression and Punishment of the Crime of Apartheid and the Rome Statute of the International Criminal Court, states have the obligation to ensure that persons responsible for serious breaches amounting to international crimes are brought to justice.

In addition, all states have the legal obligation to cooperate to bring Israel’s international crimes to an end. They should also not recognize the illegal situation created by Israel in its settlement enterprise, nor render aid or assistance in maintaining that situation. Therefore, all states have to ensure that its organs, public and private entities, and persons whose activities are attributable to the state under international law, do not violate these obligations. This includes state-funded or otherwise-supported aid agencies and businesses performing certain official functions in the settlement enterprise.

Complicity of states in Israel’s international crimes in relation to settlements

Many states are complicit in Israel’s settlement enterprise by rendering unlawful aid or assistance via state organs, entities and individuals whose activities are attributable to the state. Grave examples are military aid or cooperation with Israel’s oppression of Palestinians in the occupied territories. Official aid or support for the construction and development of Israel’s wall, checkpoints, terminals, prisons and detention centers are other examples.

The same counts for aid or support the so-called joint Israeli-Palestinian industrial zones in the occupied territories, which benefit Israeli business, undermine Palestinian development and exploit Palestinian labor. States are also complicit by allowing direct, often tax-exempt, support of the illegal settlements by Jewish and Christian Zionist organizations registered in their country.

A grave act of complicity is the international protection the United States provide to Israel. Through diplomatic pressure on other states, in the full knowledge of the circumstances, it obstructs efforts of states - within and outside the United Nations - to counteract Israel’s serious breaches.

Furthermore, states who cooperate with or support settlement activities of Israeli state-organs or public and private entities violate the legal obligation not to provide aid or assistance in maintainingthe unlawful situation. This happens in numerous cases of official cooperation in the area of trade and research, including the EU. State support to activities or projects of (transnational) business companies who contribute to Israel’s unlawful settlement enterprise in the occupied territories. Such aid or assistance amounts to recognition of the illegal situation created by Israel in the occupied territories.

The 2010 OECD decision to accept Israel as a member, with its settlements in the occupied territories but without the occupied Palestinian population, is mentioned as another grave example of complicity.

Complicity of donor governments and state funded aid agencies

Donor governments and state-funded aid agencies render aid or assistance to Israel’s settlement enterprise when they construct Palestinian infrastructure, in particular roads, which indirectly contributes to the maintenance of Israel’s regime of segregation and apartheid in the occupied territories and the expansion and entrenchment of Israel’s settlements in the occupied territories. The same counts for the procurement of materials or goods for humanitarian and development aid from Israeli suppliers implicated in violations linked to the settlement enterprise.

In addition, states or state-funded aid agencies provide recognition of the settlement enterprise when they abide by Israel’s illegal permit regime in the occupied territories, or when state representatives conduct relations with Israeli organs or entities endorsing the illegal settlement enterprise.

Moreover, donor governments and state-funded agencies provide recognition when they fail to hold Israel accountable for its serious breaches in public statements or UN resolutions, or tolerate destruction or damage of aid-infrastructure or aid-equipment by the Israeli army without military necessity, or by private settlers.

States can lawfully impose embargoes and sanctions against Israel

The serious breaches linked to Israel’s settlement enterprise in the occupied territories legally affect all states. Therefore, states are entitled to act individually or collectively on behalf of the Palestinian victims. They can lawfully take countermeasures such as reprisals or sanctions, because Israel has failed to comply with its obligation of cessation of the illegal settlement enterprise and reparation for Palestinian victims.

To bring down Israel’s settlement enterprise states can, for example, lawfully adopt measures to prohibit import of Israeli goods or export to Israel, suspend cooperation agreements with Israel, impose other forms of embargoes on trade and cooperation; freeze funds and assets of the Israeli state, entities and persons responsible for the serious breaches; bar Israeli banks from international financial transfers (SWIFT); and suspend agreements on landing rights of airplanes or impose flight bans.

However, states have failed to adopt appropriate countermeasures to end Israel’s illegal settlement enterprise. That is why the BDS movement campaigns against governments, local authorities, companies or other actors who are involved in Israel’s breaches of international law against the Palestinians in the occupied territories. The BDS movement can build on the legal arguments presented in Al Haq’s paper to strengthen its strategy and actions.

Comments

I have grown tired of how the Palestinian story is losing focus while Israeli expansion plows ahead unabated. And I sense the underlying reason is that much of the world has grown tired of the ‘intelligentsia-type’ rhetoric many so-called experts frame the Palestinian question. While Adri’s piece is concise, factual and to the point, it is replete with the monotonous angle of how to procure genuine statehood for Palestine. It seems only dignitaries at a UN convention and anyone genuinely devoted the Palestinian cause could grasp and comprehend what Adri is saying. Please do not take my critique as negative but rather a wake-up call to those of us who feel the Palestinian question has been finally answered by Israeli settlements.

Adri’s piece may be difficult for everyone to apprehend, but to me it is a necessary element for exactly (keeping) the focus to achieve genuine statehood for Palestine. It cements the foundation upon which for example the BDS or other movements / initiatives can build their activities. It gives the justification; but it is the action that needs to take place to get there. Adri’s piece may elaborate be a part of the road to a sovereign Palestine, but the vehicle to get to there needs to be constructed and kept in motion through a continuous development of new strategies and activities, under the same, for example BDS, umbrella (focus). The trick is to keep on inventing smart activities / strategies within the same frame (like BDS) that are simple to understand for and appealing to the broad public. It is therefore necessary that Adri’s piece is comprehensible for those who invent these strategies / activities. Not necessarily for the broad public. The article itself is already a good of example as it attempts to make more accessible an important but difficult substance as presented in the Al Haq report. Who is creative and mobilizes the masses on these premises?

I was born in Australia to Syrian parents. Mt father fought in the so-called 6-day war against Israel in 1967. I have seen the Golan Heights from afar within the Syrian border. And despite being an Australian citizen, I dare not enter Palestine as this is seen as an act of act of treason by the Syrian government. When I was younger, many Arabs in Australia and the Middle East felt a real bond and connection with the Palestinian cause and wanted to help.

This stance, however, has changed recently. Having worked throughout the Gulf region, I hear a new narrative uttered by many in the Arab world: That since the Palestinian question has - or can never truly been answered - then maybe it is the fault of the Palestinian people. If Arabs in the middle east feel this way, imagine what many in the western world think?

I am not suggesting that people don't feel the Palestinians don't deserve justice and recompense for their generations-old suffering. It's just that such views have been counterbalanced - unfortunately - with a feeling of bewilderment and confusion from the world-wide community. From the outside looking in, Israel appears a strong and unified nation while the Palestinians portray a family riddled with infighting and fractured alliances.

We must therefore do all we can to rectify the lens through which the world sees Palestine. We must refocus to delineate a story of dispossession, not disarray; a tale of injustice, not self affliction; of courage under fire, not self-destruction. If we can re-focus and once again begin to see Palestine as a people just and vindicated in demanding statehood, then maybe, just maybe, that day may come to pass.

Al Haq’s report clarifies - in legal terms - that states can take countermeasures to bring down Israel’s illegal settlement enterprise. I felt that the many examples of complicity mentioned in the report would be useful and empowering for the Boycott Divestment and Sanctions (BDS) movement.

Do you think BDS activism is a useful direction? Do you have other suggestions? I am interested to learn more about your opinion.

I was interested to read your reflections on Adri's article. However, I fail to see how a combination of law and morals result in a "loss of focus" for the Palestinian cause. To my mind this combination does exactly the opposite, certainly in the context of the BDS movement.

BDS draws on both legal arguments and moral positions. The moral positions are easy enough to explain and justify, provided one is open to them. Most can see that Israel's brutal, belligerent occupation and racist oppression of Palestinians, both in the so-called '48 and '67 areas is fundamentally wrong. But many just don't want to see this.

A legal argument alone is dry and complicated. However overwhelming the legal argument is in favour of Palestinian individual and national rights, explaining it can be a complex undertaking. You would therefore be right in saying that a legal argument, without a moral context, is little more than 'rhetoric'.

This is why Adri's analysis of the Al-Haq document is so helpful. She explains the document's legal positions in the moral context of the BDS campaign. As she concludes:

"states have failed to adopt appropriate countermeasures to end Israel’s illegal settlement enterprise. That is why the BDS movement campaigns against governments, local authorities, companies or other actors who are involved in Israel’s breaches of international law against the Palestinians in the occupied territories. The BDS movement can build on the legal arguments presented in Al Haq’s paper to strengthen its strategy and actions."

In my view, the BDS campaign can potentially benefit a lot from Al-Haq's authoritative document, which has been further endorsed by numerous lawyers, some of them very prominent, as clarified by Ms. Nieuwhof.

In short, Ms. Nieuwhof's main message seems to be that one should not stop at a legal argument alone. One must USE it as one of two major underpinnings of any BDS campaign.

Your presence and contribution is commendable and invaluable. However, as Israel usurp more and more of historic Palestine, a new direction has become essential to prevent the ‘final annexation’ from seeing the light of day. Israel has taken more land by remaining steadfast in the face of condemnation and reality.

We must, therefore, do the same and form a coherent and formidable picture that highlights Palestine as one, solid construct. For today, it is not. We no longer hear about ‘Palestine’ but rather Hamas and Fatah as conflicting groups who, incidentally, are Palestinian. And when the outside world hear this, they would sooner forget such complex and intricate wrangling and focus on an entity that paints itself – despite its inherent differences – as one, solid group who deserves to live in peace and security. This narrative has remained almost unchanged – and unchecked – since 1947.

So where do we go from here? The boycott and divestment movement has clearly not worked as Israel’s grip and influence in western media circles can spin the best of webs almost impossible to unravel. We therefore need a fresh, new face the world can identify with. Arafat spoke English. Which prominent Palestinian leader speaks English now? And as Israel glee in the inner-squabbling of Palestinian politics thus seeing justification for further prolonging the occupation and developing settlements, the Palestinian question becomes barely a sentence.

The Palestinian picture must become accessible to everyone and its narrative comprehensible to the layman who may have no idea where Palestine actually is. The very existence of a Palestinian state rests on these two precepts; otherwise we may never be able to visit a place called Palestine ever again.

You evidently have a thoughtful, even sympathetic take on the plight of the Palestinians, not least framed by your father's experiences. However, I suspect that your inability to visit Palestine because of Israel's racist policies means that you have not been able to gain a clear picture of what is happening within Palestine itself.

The "face" of Palestinians used to be the PLO, and the PLO alone. These days, BDS - and the "cultural revolution" that accompanies it - unifies Palestinians & the global solidarity movement that supports it. I visit the region regularly and do not share your view, as propagated by mainstream media, that Palestinians are as fractured a people as you suggest. Certainly there are divisions, but a far greater sense of common purpose and solidarity than one might expect. Once again, BDS is solidifying this.

Nothing captured this spirit better for me than a day in Bethlehem last Christmas. Youth bands representing numerous communities, religious groups & political affiliations proudly marched through the ancient streets, refusing to succumb to Israel's barbarism and powerfully dispensing Golda Meir's plaintive appeal that they "did not exist".

Read beyond the stories of misery and take note of the uplifting messages in between. Just as in apartheid South Africa (which I am old enough to recall), where people refused to allow the regime to destroy their dream, Palestinians are resolutely sending a message to Israel and its colonialist supporters: "you can destroy our homes, you can even murder us, but you can never - ever - destroy our dignity".

As for boycott "not working", I'm afraid I do not agree with you at all. Israel is terrified of the BDS campaign, just as white South Africa was, not of economic isolation, but of growing social & cultural isolation.

There is another perspective you should be conscious of. Palestinians don't want sympathy. They want your solidarity.

"You can destroy our homes, you can even murder us, but you can never - ever - destroy our dignity".

They do destroy Palestinian homes and no one utters a word. They murder Palestinians and their blood runs deep into the annals of historical insignificance. Such words only strengthen the resolve of the Zionist movement who, literally, annex more and more land each day to the detriment of any viable Palestinian state.

You may recall that Israeli Jews - Ilan Pappe being a notable figure - have attempted to boycott and divest themselves from Israel's grip on Palestine's throat. The web of entanglement, however, is much wider and stickier than we may care to admit. Nothing can prosper without support and sponsorship. And as long as American foreign policy requires a satellite state to take care of business in the Middle East, a large chunk of western-based media will forever polarize the issue as Israel the hapless victim while Palestine's genuine genuine demand for statehood is tainted as an existential threat not only to Israel but to peace in the Middle East.

This narrative has been superbly crafted by what we hardly see or hear. For instance, the American veto coupled with its on-going sponsorship and investment of the biggest land-grab in history, makes Israel vindicated in occupying Palestine. The narrative must be re-written to portray actors like Hamas, Hezbollah and Iran not as villains but suitors committed to legitimizing the existence of Palestine while Gulf states like Saudi Arabia and Qatar pay lip service to the Palestinian cause as dictated by their corporate sponsor - American foreign policy. Such a picture encapsulates and incorporates "everyone" into the Geo-political farce that has become the Palestine/Israel saga.

The world has been coaxed to pay attention only when blood is spilt or when we can no longer ignore the plight of the innocent. And as long as Palestine's innocence is edited as masked aggression, its land, I am sad to say, shall become a lost entity to the annals of history.